Strengthening Media and Public Access to Government Records

Gary D. Bass, Ph.D.

Executive Director

OMB Watch

Public Comments at the

Media Access to Government Information Conference (MAGIC)

April 12, 2011 – Washington, DC

The Freedom of Information Act has served as the backbone of public access to government records for roughly 45 years. Through FOIA, media organizations, academic institutions, public interest organizations, and interested individuals have been able to obtain vital information to help them hold government and powerful institutions accountable, obtain information that has enabled them to do their jobs better, and, generally, strengthen our democracy. As the leader of a research and advocacy organization, I can attest to the power of FOIA: it has helped level the playing field by giving us powerful tools in our quest to improve qualify of life in America.

Yet, for all of its importance and usefulness, FOIA contains serious flaws and inherent limitations. As many have noted, FOIA’s file-a-request-and-wait-for-a-response approach is outdated and is the wrong model for today’s needs; it’s a rotary telephone living in an age of push-button smartphones.

First, FOIA suffers from core implementation problems. For example, FOIA has always been under-funded, which has resulted in backlogs and other problems with implementation. Additionally, FOIA policy is batted back and forth from administration to administration like a ping pong ball. In one administration, the Department of Justice is told to emphasize disclosure; in another, it is told to withhold records whenever possible. These policy shifts have significant consequences as shown by the rapid increase in the use of the largely discretionary FOIA exemptions (i.e., Exemptions 2 and 5) in the aftermath of memos from senior officials in the Bush administration.

Second, FOIA is an anachronism. It is a law designed for the paper world that is functioning in an electronic era. Moreover, as a requestor-driven law, the burden is on the public to seek the information: an individual must file a request for records from the government, and the government, after review, takes action to give or not give the requestor the records. The government’s responsibility under FOIA is to respond to requests for information, not to initiate the dissemination of information. This suggests that, while improvements in the way FOIA operates are essential, much more is needed to alter the fundamental principles under which access to government records operates.

Instead of government responding to requests for information, it must initiate the disclosure. President Obama called for this early in his administration. In his second memo as president, Obama said, “In the face of doubt, openness prevails…. The presumption of disclosure also means that agencies should takeaffirmative steps to make information public.They should not wait for specific requests from the public.”

To move in this direction, Obama launched the Open Government Directive, which required agencies to publish Open Government Plans that contained steps for making more information publicly accessible. These Plans are uneven, with some being quite exceptional and others quite pedestrian. Like the unevenness in the Plans, there is unevenness in how agencies are embracing proactive disclosure of information. Today, openness in the agencies is like a patchwork quilt, with some agencies engaging in energetic and exciting actions and others not really changing in any demonstrable way.

What is needed today is a bold plan to institute an affirmative obligation on federal agencies to disclose information, what might be called the Right to Know (RTK) Initiative. In this RTK model, FOIA becomes the vehicle of last resort, not the first tool citizens turn to. It will still be an essential tool in promoting transparency, but it becomes part of the safety net of public access, along with whistleblower protections. The RTK affirmative disclosure model would create a more open and transparent government in pursuit of a free, permanent public access strategy. While some information would not be disclosed under RTK, the burden to justify withholding information should rest squarely on the shoulders ofgovernment, should be setas a high bar, and should be fully disclosed and explained in terms all Americans can understand.

So how might this new model work? Here is an initial,five-step process for launching the initiative.

  1. Any time the government collects information, it should presume that the information will be disclosed in a timely and searchable manner.Currently, when most information is collected from the public, anagency must get approval from the Office of Management and Budget (OMB) under the Paperwork Reduction Act. In the future, such approval should be contingent on a plan for dissemination of the information being collected or an explanation for why the information cannot be disclosed. The disclosure plan (or rationale for nondisclosure) should be part of the information made publicly available under the Paperwork Reduction Act.
  1. At a minimum each agency should be required to make certain basic information publicly available in a searchable website. Under the Open Government Directive, the emphasis has been on agencies providing high-value information related to their missions. Equally as important is high-value information that can be used to hold the agencies accountable or that can foster greater trust in government.

What is needed is a standard or floor on disclosure that would be universally applied by each agency within the federal government. In this way, the public will no longer face a patchwork quilt of transparency and access to information. This provides certainty to the media and public that various types of information will be available through agency websites. While this floor will need to evolve and expand over time, here is a starting point:

  1. A directory of all government employees, job titles, and contact information. During Sunshine Week 2011, the White House announced that agencies must soon start providing this information;
  2. Calendars(with identification of people, companies, and topics involved in meetings), correspondence logs, communications with Congress, and ethics disclosurefor top-level agency officials (e.g., the Secretary, Deputy Secretary, and Assistant Secretary), along with agency visitor logs. If the White House can provide a searchable website of nearly all visitors to the White House, as well as make the president’s calendar available through a website, there is no reason that each agency cannot do the same;
  3. Ethics audit reports, Inspectors General reports (exclusive of classified materials), information about Federal Advisory Committee Act meetings, and other accountability information;
  4. Contract and award documents, including, but not limited to, Requests for Proposals, Contracts, Task Orders and Contract Modifications, along with improved disclosure of spending information that includes disclosure of tax expenditures;
  5. Disclosure of communications by people trying to influence how money is spent by the executive branch;
  6. Permit, compliance, and enforcement data from each agency. On Jan. 18, President Obama issued a memo indicating that compliance and enforcement activities are to be made available in a searchable, online format and that agencies must submit plans to begin this process by May 18;
  7. An index of all information holdings, including those that are not disclosed
  8. A list of all FOIA requests and any documents released as a result of a FOIA request must be posted to the web in an organized, searchable manner, on a timely basis, starting with electronic records. There might be a 30- or 60-day waiting period before making FOIA requests and the disclosed records more broadly available; and
  9. A list of records that will be declassified and the timetable for such action.
  1. Address the misuse of national security secrecy. Many are concerned about the aggressive prosecution of national security whistleblowers, especially in the aftermath of WikiLeaks. There is certainly a need for national security secrets, but too often, information is unnecessarily classified in order to protect it. There needs to be a concerted effort to limit what is classified and to aggressively declassify information that has already been classified. The White House should put teeth into requirements for agencies to conduct a Fundamental Classification Guidance Review. The Review, required by June 2012 under the president’s national security classification executive order, involves the comprehensive examination of thousands of classification guides, particularly in the larger classifying agencies such as the Pentagon. The White House needs to be clear that the Review should be aggressively pursued to eliminate obsolete and unnecessary classification requirements and that it expects to see measurable reductions in the scope of classification policies.

At the same time, there is a need to bring greater accountability to the process of invoking the state secrets privilege. On Sept. 23, 2009, when the Department of Justice announced its new state secrets policy, the agency's press release said the memo contains requirements for "facilitation of court review" and that "In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review." At the time, we were told that this element of the policy would come out in a separate memo,but that memo has never been issued. It is time for that to occur and for robust, meaningful judicial review to become a key part of the administration's official state secrets policy.

  1. Improve the quality of the information that is disclosed. The above steps call for making more high-value information available in a timely and searchable manner. However, if the information is inaccurate or misleading, it vitiates the value of affirmative disclosure. The “garbage in/garbage out” cycle of government information needs to stop. This will require a concerted effort from the White House, agency leadership, and possibly independent audits of agency information quality.
  1. Enforce the first four points. There are currently very few tools for enforcement. For example, without new legislative authority, there is no private right of action to compel any of the above actions. Thus, we are reduced to the concept of strong leadership. One positive aspect of the Open Government Directive has been the existence of a dedicated White Housetransparency team. Many agency personnel have felt this leadership energy and have responded accordingly. There are invigorated interagency teams working on transparency issues, resulting in some exciting agency actions. The president needs to reinforce and strongly encourage the work of the White House team and lead by example.

1